Constable v Repatriation Commission

REASONS FOR JUDGMENT 1 The applicant was born on 1 August 1941 and enlisted in the Australian Regular Army on 4 November 1958. During 1963 and 1964 he served in Papua and New Guinea as a driver/storeman in an engineering unit. He volunteered for service in Vietnam and served with 17 Construction Squadron at Vung Tau and Nui Dat from 23 July 1969 until 23 July 1970. When he was posted to Vietnam he held the rank of temporary corporal and was promoted to that substantive rank on 10 June 1970. Between 15 April 1970 and 15 July 1970 he carried out the duties of a sergeant. He left the Army on 4 November 1979 and worked until December 1983 as a driver with a security company. He lost that job because of a drink-driving offence and then worked as a security officer, as a cleaner and as a groundsman/maintenance worker until he ceased work in 1999. 2 The applicant's service in Vietnam was operational service for the purposes of the Veterans' Entitlements Act 1986 (Cth) (the "Act"). He has a number of disabilities which have been accepted as being related to his war service, including a depressive disorder. On 17 February 2003 he claimed that he suffered from alcohol abuse or dependence and that this was also attributable to his operational service in Vietnam. This claim was rejected by the Veterans' Review Board, and that decision was affirmed by the Administrative Appeals Tribunal (the "AAT"). This is an appeal from that decision. The right of appeal is limited to questions of law. The ultimate question for determination by the AAT was whether or not the applicant's alcohol abuse or dependence was war-caused. He now claims that the AAT erred in law in failing to apply the appropriate test or misinterpreted the requirements of that test. 3 The applicant's claim is pursuant to Part II of the Act. Section 120 provides relevantly that: '(1) Where a claim under Part II for a pension in respect of the incapacity from … disease of a veteran, …relates to the operational service rendered by the veteran, the Commission shall determine that the … disease was a war-caused disease … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. (2) … (3) In applying subsection (1) … in respect of the incapacity of a person from … disease … related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: … (b) that the disease was a war caused disease …; or (c) … … if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the … disease … with the circumstances of the particular service rendered by the person.' (4) … (5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that: (a) … (b) a disease contracted by a person is a war-caused disease …; (c) …; or (d) … (6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on: (a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or (b) the Commonwealth, the Department or any other person in relation to such a claim or application; any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.' 4 Section 120A provides that: '(1) This section applies to any of the following claims made on or after 1 June 1994; (a) a claim under Part II that relates to the operational service rendered by a veteran; (b) … (2) … (3) For the purposes of subsection 120(3), a hypothesis connecting … a disease contracted by a person … with the circumstances of any particular service rendered by the person is reasonable only if there is in force: (a) a Statement of Principles determined under subsection 196B(2) or (11); or (b) … .' 5 The operation of ss 120 and 120A depends to some extent upon whether or not a statement of principles has been made in connection with the relevant disease. There is such a statement of principles concerning alcohol dependence and alcohol abuse (Statement of Principles 76 of 1998). The condition of alcohol dependence is defined in the statement of principles as follows: ' "alcohol dependence" means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour. The diagnostic criteria for alcohol dependence are those specified in DSM-IV, and are as follows: A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period: (1) tolerance, as defined by either of the following: (a) a need for markedly increased amounts of alcohol to achieve intoxication or desired effect (b) markedly diminished effect with continued use of the same amount of alcohol (2) withdrawal, as manifested by either of the following: (a) the characteristic withdrawal syndrome for alcohol (b) the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms (3) alcohol is often taken in larger amounts or over a longer period than was intended (4) there is a persistent desire or unsuccessful efforts to cut down or control alcohol use (5) a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects (6) important social, occupational or recreational activities are given up or reduced because of alcohol use (7) alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol;' 6 Alcohol abuse is defined as follows: ' "alcohol abuse" means the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent. The diagnostic criteria for alcohol abuse are those specified in DSM-IV, and are as follows A. A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period: (1) recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home (2) recurrent alcohol use in situations in which it is physically hazardous (3) recurrent alcohol-related legal problems (4) continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol B. The symptoms have never met the criteria for alcohol dependence. The definitions for alcohol dependence and alcohol abuse exclude acute alcohol intoxication in the absence of alcohol dependence or alcohol abuse. Alcohol dependence or alcohol abuse attracts ICD-9-CM code 303 or 305.0.' Nothing turns upon the distinction between alcohol abuse and alcohol dependence. I will hereafter describe both conditions collectively as "alcohol abuse".